The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
On or about September 5, 2001, pro se petitioner Renay Lynch ("Lynch") filed a petition for a writ of habeas corpus from this Court, pursuant to 28 U.S.C. § 2254, challenging her April 9, 1998 conviction following a jury trial on charges of second degree murder (N.Y. Penal Law §§ 125.25(3), 20.00) and first degree robbery (N.Y. Penal Law §§ 160.15(1), 20.00). (Docket No. 1).*fn1 Lynch alleged the following claims: her incuplatory statement to the police had been obtained in violation of her Fifth Amendment rights, trial counsel had failed to proved effective assistance for numerous reasons, her conviction was against the weight of the credible evidence, and her sentence was harsh and excessive. The parties subsequently consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c) and, on November 21, 2001, the case was assigned to Magistrate Judge Hugh B. Scott. (Docket No. 7). Respondent answered the petition on or about January 18, 2002. (Docket Nos. 8 & 9). Lynch filed an amended petition (Docket No. 10) asserting a newly discovered evidence claim based upon a purported recantation by prosecution witness Raquel Hunter, a jailhouse informant. (Docket No. 21). Respondent submitted a supplemental memorandum of law in opposition (Docket No. 17) to the amended petition. At that time, Magistrate Judge Scott deemed the matter submitted on the pleadings. (Docket No. 18).
On March 24, 2005, Magistrate Judge Scott issued a Decision and Order (Docket No. 21) denying all of Lynch's habeas claims on the merits and denying a certificate of appealability pursuant to 28 U.S.C. § 2253(c). Judgment was entered in favor of respondent on March 25, 2005. (Docket No. 22).
Thereafter, Lynch apparently filed a pleading with the United States Court of Appeals for the Second Circuit which was returned to the District Court Clerk with instructions to construe it as a notice of appeal regarding the judgment dismissing Lynch's habeas petition. This accordingly was docketed on April 18, 2005, as petitioner's Notice of Appeal (Docket No. 23).
On December 21, 2005, the Second Circuit issued a mandate denying Lynch's motion for a certificate of appealability and dismissing her appeal regarding her habeas petition because she had failed to make a "substantial showing of the denial of a constitutional right" under 28 U.S.C. § 2253(c). (Docket No. 24).
During the time that her notice of appeal was pending in the Second Circuit, Lynch filed a form petition with that court titled "United States Court of Appeals for the Second Circuit -- Application for Leave to File a Second or Successive Habeas Corpus Petition 28 U.S.C. § 2244(b) By a Prisoner in State Custody." The Second Circuit considered this as a motion for an "order authorizing the United States District Court for the Western District of New York to consider a successive 28 U.S.C. § 2254 petition." See Second Circuit Mandate filed May 19, 2006 (Docket No. 25). At the time Lynch filed this motion, her notice of appeal was still pending before the Second Circuit. For this reason, the Second Circuit ordered that Lynch's motion be "transferred to the district court for whatever further proceedings are appropriate, as adjudication of petitioner's prior petition was not final as of the date the present application was filed." Second Circuit Mandate dated May 19, 2006 (Docket No. 25) (citing Whab v. United States, 408 F.3d 116, 120 (2d Cir. 2005)). This mandate was filed with the District Court Clerk on May 24, 2006 (Docket No. 25).
Lynch, acting pro se, then filed with the District Court Clerk a form petition titled "United States Court of Appeals for the Second Circuit -- Application for Leave to File a Second or Successive Habeas Corpus Petition 28 U.S.C. § 2244(b) By a Prisoner in State Custody." (Docket No. 26). I note that this is the same pleading Lynch had filed on November 21, 2005, in the Second Circuit since it bears the stamp of that court showing the date it was received. In this pleading, which hereinafter is referred to as the Subsequent Petition, Lynch's "Ground one" for relief is the same as her "actual innocence" claim asserted in the first Petition--namely, that she was convicted upon the perjured testimony of jailhouse informant Raquel Hunter ("Hunter"). Lynch has resubmitted the affidavit in which Hunter allegedly recanted her trial testimony, along with a new affidavit from a woman named Rayna Kelly ("Kelly"), who apparently was a co-defendant with Hunter in an unrelated case. Kelly states in her affidavit that Hunter told her that Hunter testified falsely at Lynch's trial. "Ground two" in the Subsequent Petition alleges that, because the prosecution's case purportedly depended only on circumstantial evidence, the trial court erred in failing to give the "moral certainty" jury charge. (Docket No. 26). In handwritten pages attached to the form (Docket No. 26), Lynch asserts two more claims. The first bears the heading, "Additional Grounds: ONE". This claim attacks the constitutionality of her confession. Lynch alleges that she was a "crack addicted . . . person with mental deficiencies." (Docket No. 26). Thus, she argues, her confession was involuntary. The other claim raised in the handwritten addendum is headed, "Additional Grounds: TWO". Therein, Lynch contends that she was wrongfully convicted of felony murder because "no robbery was proven to have taken place . . . ." According to Lynch, the "detectives testified to stacks of money being on the kitchen counter, jewelry still on victim." (Docket No. 26).
Lynch thereafter filed with this Court a motion to appoint counsel and to amend the subsequent petition. (Docket No. 27). The matter was reassigned to the undersigned on June 6, 2007. (Docket No. 29). Lynch then filed a pro se motion for an evidentiary hearing on July 2, 2007. (Docket No. 30).
For the reasons that follow, the subsequent petition is dismissed, as are Lynch's motions to amend the subsequent petition, for counsel, and for an evidentiary hearing.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which amended the federal habeas corpus statute, established a "'gatekeeping' mechanism," Felker v. Turpin, 518 U.S. 651, 657 (1996), aimed toward limiting the filing of "second or successive" habeas corpus petitions. See Adams v. United States, 155 F.3d 582, 583 (2d Cir. 1998) (noting that AEDPA imposes "stringent limits on a prisoner's ability to bring a second or successive application for a writ of habeas corpus.") (per curiam). Section 2244(b) was amended to read as follows:
(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior ...